Newsletter Winter 2015

Jean Maria Arrigo and Roy Eidelson

Div 48 Representative to Council

Attorney David Hoffman and his colleagues provided this summary in their comprehensive July 2015 report:

Our investigation determined that key APA officials, principally the APA Ethics Director joined and supported at times by other APA officials, colluded with important DoD officials to have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater fashion than existing DoD interrogation guidelines.

In response, APA Board members not directly implicated in the Hoffman Report held a closed Executive Session at the August convention in Toronto to inform Council about actions taken in regard to staff members implicated in the report. As publicly announced, Director of the APA Ethics Office Stephen Behnke was fired. Chief Executive Officer Norman Anderson and Deputy Chief Executive Officer Michael Honaker retired early, and Executive Director for Public and Member Communications Rhea Farberman resigned — all three with accolades (APA, 2015). Council was assured that the performance of all staff members implicated in the Hoffman Report had been fairly reviewed using identical criteria. At the same time it was implied that unspecified practical considerations were involved in the decisions reached. We were told that, per APA bylaws, the Board decisions were final.
Prior to the meeting, Council members had received copies of “Legal Duties of Association Board Members” (Tenenbaum, 2002) as the foundation of Board decisions. The one-page document contained this exculpatory clause:

The “business judgment rule” protects officers and directors from personal liability for actions made in poor judgment as long as there is a reasonable basis to indicate that the action was undertaken with due care and in good faith.

However, the Board did not explain how this rule, including the due care and good faith standards, was applied in specific cases. For example, as evidenced in the Hoffman Report, APA Chief Counsel Nathalie Gilfoyle was concerned about conflict of interest when the Director of the APA Practice Directorate Russell Newman and his spouse Debra Dunivin, a lead interrogation psychologist working for the Department of Defense at Guantanamo, took key roles in the creation and proceedings of the 2005 Presidential Task Force on Psychological Ethics and National Security (PENS). In spite of her failure to take action to restrain this momentous conflict of interest, the Chief Counsel has received resolute support from the Board.
Like the confidentiality of the PENS Task Force meeting itself, the confidentiality of the Executive Session served to protect staff and Board members from closer scrutiny regarding possible failures in their fiduciary duty toward the Association. Going forward, the opaque use of the “business judgment rule” provides an easy avenue for manipulation of APA authorities by influential outside agencies, such as the DoD and CIA. When the DoD or CIA has a stake in the outcome, only truly independent and impartial reviewers, not the APA Board, can fairly evaluate whether actions were “undertaken with due care and in good faith.” In refusing to censure staff (and officers) for malfeasance, in effect the APA Board rejected compelling evidence that the Hoffman Report had provided.